Asking for a Doctor’s Note in Ontario: Can An Employer Demand a Sick Note?

Do recent changes to the law bar employers from asking for a doctor’s note? If you are an employee, small employer or manager who’s heard that you just can’t ask for a doctor’s note anymore, you’re not alone. But, you probably haven’t got all the information.

2019 NOTE: RECENT AMENDMENTS HAVE REVERSED MANY 2018 ESA AMENDMENTS. CONSULT THE CURRENT ESA OR AN EMPLOYMENT LAWYER TO ENSURE YOU HAVE CURRENT INFORMATION ABOUT THE LAW.

Sick Notes

Amendments to the Ontario Employment Standards Act do significantly limit an employer’s right to ask for a doctor’s note. Ontario employees are entitled to a minimum of 10 personal emergency days or sick days. And they now have the right to be paid for their first 2 days off sick. In 2018, the Ontario government introduced a ban on asking for doctor’s notes to support these absences.

Previously, many employers had a blanket policy requiring a note for any sick day taken. Unsurprisingly, lots of doctors, employees and unions criticized these policies. Sending a worker to the doctor for a note when they just had the flu or a migraine wasn’t an efficient use of public health resources. In addition, it risked exposing workers or other patients to more germs in the waiting room.

Fear of discipline or dismissal due to an inability to produce a note after every sick day encouraged many employees to go to work despite their symptoms. Proponents of the bill pointed to productivity loss and spread of germs in the workplace as good reasons to reign-in requests for sick notes.

On top of these health system concerns, workers were often unable to see their regular doctor’s quickly enough to satisfy their employers- or before their illness passed. This meant doctors notes couldn’t truly speak to the employee’s symptoms at the time of their day off.

Some unionized companies had already started to request doctors notes only in extenuating circumstances. For example, many unionized employees could be required to produce a note if their sick day habits were suspicious (think: taking the Friday off before every long week). Generally, unionized employees could count on not needing a doctor’s note for occasional absences.

Not Your Doctor‘s Notes

The Act preserves an employer’s right to ask for other evidence that an employee needed a sick day. These requests for proof must be reasonable in the circumstances. The Act specifically singles out just doctors’, nurses’ and psychologists’ notes (for now). So, it’s possible that the Ministry would permit an employer to request notes from other relevant professionals. Since personal emergency days can be taken for other reasons )like to care for a child on a snow day) employees should be prepared to provide proof for their non-medical emergencies.

Not Your Doctor’s Note

The no medical note rule just applies to personal emergency leave. An employer can still request medical notes or certificates to support a request for other types of leave. For example, Family Caregiver, Family Medical or Critical Illness leave requests could result in a demand for a doctor’s note. This information isn’t about the employee’s health though. These leaves are provided to workers who need time off to care for some one else.

Medical Opinions

Contrary to what you may have heard, the new law doesn’t mean an employer can never ask for medical information.

Employers who provide more than the minimum number of sick days might be able to make reasonable requests for doctor’s notes to support time off beyond the 10-day minimum. Likewise, employers who offer short-term or long-term disability benefits will still be entitled to proof of eligibility.

Plus, employers can still ask for medical support in response to a request for accommodation. Employees are entitled to be reasonably accommodated in respect of workplace injuries and disabilities, up to the point of undue hardship. An employer can ask for a doctor’s opinion about what type of accommodation is appropriate to help a disabled employee perform their job. Information about your physical or mental health abilities or restrictions can be relevant to this assessment. However, employers generally can’t ask you or your doctor to identify your specific diagnosis. It’s still up to you to decide whether you wish to share your diagnosis or keep it private.

Where do we go from here?

Neither employers nor employees should assume that a request for medical evidence is inherently illegal. However, employers with old policies requiring doctor’s notes for brief illnesses will need to re-visit these practices. When in doubt, review the Act carefully or call an employment lawyer for guidance.

DISCLAIMER: This blog is for educational and informational purposes only and does not constitute legal advice. Comments are not regularly monitored and are not confidential. Please do not post comments containing the details of your case. If you would like legal advice or have questions about your particular workplace problems, please contact a lawyer. Click Here to contact Hamilton employment and human rights lawyer Sarah Molyneaux now. Contacting Molyneaux Law or using this website does not create a lawyer-client relationship.

38 Comments

A
on June 26, 2018 at 6:15 am

After the 10 Sick/Emerg days are used can an employer start asking for doctors notes? My workplace gives the 10 unpaid + 2 paid days. It has been a practice to start issuing Written Warnings with excessive absenteeism past the 10 day allowance. Is this still acceptable with the new laws guidelines?

Sarah Molyneaux
on July 12, 2018 at 5:48 pm

Hi A! The new law only governs the 10 days of personal emergency leave guaranteed by the ESA. Typically, if an employer is willing to provide you more than the guaranteed 10 days, they can enforce their own rules and policies or employment contracts in terms of requiring documentation to support your absence. These rules can’t violate employee’s human rights, though (for example, employers may have to tread carefully if an employee needs more time off due to a disability).

If you have questions about your specific circumstances, please call me or another employment lawyer. Blog comments are just general information – they aren’t legal advice tailored to your specific situation 🙂

M
on July 19, 2018 at 9:58 pm

If my Dr suggests that a change of manager is advisable what does my employer have to do?

Sarah Molyneaux
on July 20, 2018 at 2:21 pm

That’s a bit more complicated and can depend on a lot of factors (your health, your job,…). An employment lawyer would be able to help you figure out what you should do and what your employer’s obligations might be. I can’t give specific legal advice on the website and don’t want you to post too much personal information online, but people with specific legal questions can feel free to call me or find a lawyer local to them here: https://lsrs.lsuc.on.ca/lsrs/

J
on July 21, 2018 at 6:06 pm

can a federally regulated company ask for a suitable medical proof for absence as required in Ontario, Canada?

Sarah Molyneaux
on July 23, 2018 at 2:30 pm

Federally regulated companies fall under the Canada Labour Code, which has different rules. You can find a brief summary of the basics around sick leave here. If you have questions about your specific circumstances, please contact an employment lawyer as soon as possible

A
on July 30, 2018 at 1:07 pm

Is your employer allowed to ask for a Doctor’s note to advise of the ability to “Return to work”?

Sarah Molyneaux
on August 1, 2018 at 5:05 pm

Hi A,
This rule only applies to the 10 days of personal emergency leave under the Ontario Employment Standards Act. What’s reasonable or legal when an employee is getting ready to return to work after a sickness or disability leave can vary. Employees with questions about a request for a doctor’s note should talk to an employment lawyer or their union (if they have one) to get legal advice.

I deleted some personal information from your comment. Just a friendly reminder that the blog is not confidential, so I’d ask you to avoid posting personal information which might identify you to other readers. If you need legal advice, you can always call me in the office or reach out to another lawyer.

E
on April 24, 2019 at 9:08 pm

I was wondering if you could explain further. For the 10 days an employer can ask for a return to work note? Or it depends?

Hi E,
Your post contained some personal information, which we’ve edited out. However, we would remind folks that the Employment Standards Act was changed in January. While your employer’s particular policies, your contract or collective agreement might entitle you to more, the basic standard is now just 3 sick days instead of the minimum 10 days employees were entitled to in 2018. You can find out a little more about these changes on our more recent post here: https://www.molylaw.com/2018/10/bill-47/

R
on August 3, 2018 at 8:21 pm

Do sick days taken with a dr’s note count toward the 10 days?

Sarah Molyneaux
on October 17, 2018 at 9:05 pm

The Employment Standards Act doesn’t have a separate right to days off with a note and days off without one – just 10 personal emergency days minimum! Sometimes employees will have more rights under an employment contract, employer policy or collective agreement. If you have questions about your specific situation, please contact an employment lawyer privately.

N
on August 26, 2018 at 12:27 pm

We are a unionized company. Can they make me get a doctor’s note?

Sarah Molyneaux
on October 17, 2018 at 8:56 pm

Unionized employees with questions about their rights should consult their Collective Agreement and consider contacting their union steward, union representative or a labour and employment lawyer if they still have specific questions about their rights. As set out in my note at the end of this article, I can’t give legal advice over the blog.

Your comment has been edited to remove some potentially identifying information. A reminder to readers/commenters not to reveal potentially identifying information in your public blog comments.

L
on August 30, 2018 at 12:55 pm

Can i ask an employee to produce a Dr. note saying he is allowed to work with workboots after an injury?

Sarah Molyneaux
on October 17, 2018 at 9:02 pm

Your comment was edited to remove potentially identifying information. However, as I say in the article, employers can still ask for a note if they reasonably require one to accommodate an employee’s disability or injury. If you’re not sure if your situation falls into this exception to the no-note rule, please call an employment lawyer to get advice suited to your/your employee’s specific circumstances.

D
on September 21, 2018 at 9:59 pm

Does this apply to salaried employees in the workforce as well or hourly only?

Sarah Molyneaux
on October 17, 2018 at 9:17 pm

It’s a common misconception that salaried employees and hourly employees have different rights in Ontario – it’s actually that there are some rules that don’t apply to managerial employees (who are often salaried) that do apply to non-managers (who are often hourly employees). But, there’s no exemption from Personal Emergency Leave for managerial employees – some other types of employees (like Lawyers!) are excluded from exercising this right if it affects their professional duties, though.

R
on October 2, 2018 at 3:56 pm

Hi, can you advise if accepting a chiropractors note is sufficient vs a physician?

Sarah Molyneaux
on October 17, 2018 at 9:07 pm

Not sure what you mean by “sufficient”, since an employer can’t require a physician’s note. Can you clarify?

R
on October 11, 2018 at 11:34 am

Ive called in sick once in july this year and thats it this monday and tuesday i have a bad cold sneezing coughing sore throat runny nose and sometimes stuffy i work in a kitchen and 1 of the managers asks me everytime for a doctors note even calling in one day.Is she aloud to do that?can i say no

Sarah Molyneaux
on October 17, 2018 at 9:09 pm

If you have questions about your specific situation, I’d encourage you to call me or another employment lawyer ASAP to speak about your concerns confidentially. As the article says, there are new rules about sick notes and normally an Ontario employer won’t be able to ask for a note for one sick day- but there may be unique factors in your case. I can’t give you advice over a blog post.

Sanica
on October 17, 2018 at 3:30 pm

Is it appropriate for them to ask a note for calling in sick (for flu) one day??

Molyneaux Law
on May 16, 2019 at 3:04 pm

Whether this is appropriate or not will depend on the particular circumstances. Please contact an employment lawyer if you think your employer may have crossed the line.

M
on November 7, 2018 at 11:58 pm

can an employer give you a write up or discipline you if you do not bring in a doctors note

This will depend on your employer’s own policies or your contract or collective agreement. If you’re unsure what your rights are in a specific situation, please contact an employment lawyer directly – or speak with your union if you have one.

S
on November 12, 2018 at 1:54 am

If you go home after half your shift because you are not feeling good is that considered a full sick day?

Molyneaux Law
on May 16, 2019 at 3:06 pm

The ESA permits your employer to take this approach, but workplace policies, your contract or collective agreement may give you other rights. Talk to an employment lawyer or your union representative if you have questions about your particular circumstances.

Can an employer request for a return to work note from the employee from his or her doctor?

Sarah Molyneaux
on February 16, 2019 at 6:24 pm

That’s a good question, and really depends on the circumstances. If you’re unsure about your rights after being off sick, or are uncomfortable with the questions your employer is asking, it’s important that you contact an employment lawyer or your union to get advice about your specific situation as soon as possible.

D
on January 26, 2019 at 4:41 pm

Hello , i hope you will be able to answer my question, i work for a Bank in Ontario. What are my rights?

Most bank workers in Ontario are federally regulated (with some exceptions). Federally regulated companies fall under the Canada Labour Code, which has different rules. You can find a brief summary of the basics around sick leave here. If you have questions about your specific circumstances, including whether you are a federally regulated worker, please contact an employment lawyer as soon as possible.

C
on February 11, 2019 at 3:30 pm

Can an employer ask for a doctors note when it is a future appointment date that you’re trying to book off?

Sarah Molyneaux
on February 16, 2019 at 6:19 pm

That’s a good question! If you are taking it as ‘sick leave’ under the new ESA rules, they probably could. But, your own employment contract, collective agreement or workplace policies may impose different rules. It’s important to get advice from an employment lawyer (or your union if you have one) if you have specific questions about your personal situation or need legal advice.

Your comment has been edited to remove some personal information. We can’t give advice on people’s specific workplace issues on this public blog. However, we can say that there is no longer a blanket ban on asking for a note. Whether it’s appropriate or not, and what can be done about it, will vary depending on your particular circumstances. People who are unsure should contact an employment lawyer to get timely advice.